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Liability Exposure to Businesses Amid COVID-19

May 6, 2020 By Lauren N. Rutkowski

Amid the Corona virus pandemic, employers and companies (hereinafter, “businesses”) are facing liability exposure like never before. In addition to the typical negligence claims, the pandemic is exposing businesses to employment issues including harassment, retaliation, and whistleblower type legal claims, and claims of OSHA violations associated with the public health crisis.  Businesses should be aware of the guidelines enacted to protect employees, customers, and the public in order to limit future law suits.

In the midst of this pandemic, businesses face a myriad of personal injury claims in the form of negligence actions and worker’s compensation claims. These personal injury claims will predominantly focus on customers and employees contracting Covid-19 while on the premises of the business/employer.

When considering an employees’ potential injury claim from contracting Covid-19, the primary relief for the employee will be through filing a worker’s compensation claim. In order to establish a worker’s compensation claim, the employee will generally need to demonstrate that an injury occurred at work and was proximately caused by their employment. Merely contracting Covid-19 is not considered to be an injury, but rather, could be considered an “occupational disease.” The primary defense to such claims will be the manner in which the employee was exposed to the virus or, if the medical evidence presented by the claimant is speculative.

There is also the possibility that non-employees could bring suit against businesses[1] in the regular court systems asserting claims of negligence. Similar tow worker’s compensation claims, negligence actions will need causal proof that the injured individual actually contracted the virus as a result of the actions or inactions of the business. However, unlike worker’s compensation claims, the plaintiff in a third party lawsuit will need to prove the company acted in a negligent manner.

Although establishing a causal connection will be difficult for claimants in both negligence and worker’ compensation actions, claims will result in costly litigation. Businesses should make conscious efforts to limit their exposure for these claims by following the CDC and OSHA guidelines for employers and carefully documenting their actions.

Businesses may find themselves at risk of various OSHA infractions during the Covid-19 outbreak. One of OSHA’s requirements is that employers provide a safe work space to its employees, free from serious recognized hazards and that the work space comply with standards, rules, and regulations issued under the OSH Act, Covid-19 has widely been recognized as a serious hazard.

While businesses should strive to comply with all OSHA orders and directives, the OSHA investigators have been granted discretion to consider a business’ good faith efforts to comply with all regulations during the Covid-19 outbreak. OSHA has recognized that there are many difficulties and obstacles facing employers during the wake of the virus and that, despite best efforts, some regulations may be violated. As such, OSHA has afforded case-by-case discretion to its investigators to note violations of OSHA regulations but to not issue a citation. These violations, even when not cited, must be corrected as expeditiously as possible. OSHA’s temporary discretion will cease once the public health crisis is deemed to have ceased.

As a side note, OSHA has confirmed that businesses will not be responsible for employees’ home offices and/or remote offices.

With regard to an employee’s refusal to work during the public health crisis, OSHA has stated that employees may refuse to work only if the employee has a reasonable belief that they are in “imminent danger” while working in their place of employment.  Thus, businesses will need to be cautious when forcing employees to appear for work during this pandemic. Rather, businesses will be better served if they grant employees liberal leave including vacation, paid sick leave, and other forms of paid time off.

Less obvious, but even more treacherous claims businesses potentially face are employment, EEOC, and privacy related claims.

EEOC has and will continue to investigate and prosecute any claims for discrimination or retaliation based on a protected class. Thus, it is extremely important for businesses to be mindful of the treatment of any individual of a protected class during the public health crisis. This means maintaining awareness of how protected classes are being treated by their superiors, as well as their co-workers. This also means that employees should be granted freedom to notify employers of potential health risks and lacking health and safety protocols in their work space and environment without fear of retaliation.

When an employee has contracted Covid-19, the company must be conscious of potential discrimination and retaliation claims from the infected employee. This could come in the form of negative treatment from other co-workers or negative employment actions including terminating an infected employee. The ADA could be implicated in such cases where an employee with an underlying condition (e.g., asthma or a heart condition) is exacerbated by Covid-19. Such underlying conditions could be considered a disability under the ADA guidelines.

While businesses must be cognizant of potential discrimination and retaliation claims by infected employees, businesses are permitted to take certain safety measures to protect other employees from the virus. These additional safety measures include requesting an infected or potentially infected employee to get tested for Covid-19 or seek medical attention. EEOC has specifically stated company employers may advise employees that they should go home when symptoms of influenza and the virus are exhibited during the public health crisis. The EEOC has further stated that company employers are permitted to take an employee’s body temperature during the public health crisis. However, both of these safety measures cannot be employed against a protected class disproportionately or in a discriminatory manner.  

With regard to privacy matters, HIPPA policies and procedures are still in full force and effect. This means that if an employee were to contract Covid-19, employers are not authorized to disclose the identity of the infected individual to other co-workers without explicit written permission by the infected individual. An employer’s disclosure of such information is a direct violation of HIPPA. Rather, employers must disclose that an outbreak has occurred to all impacted employees, but cannot disclose the identity of those infected without their permission.

Pending Legislation
Various business organizations have been advocating for political action to limit businesses’ exposure to lawsuits as a result of Covid-19. Some of the proposed limitations include permitting lawsuits only where a company has actual knowledge an employee would be exposed to the virus and acted with reckless indifference or conscious disregard as to whether the employee would contract the virus. Opponents to this proposed legislation have argued that such a regulation could lead to the deterioration of work conditions at a time when essential workers are already exceedingly vulnerable.

This legislation is still pending in the senate and has not been passed or disposed with at this time.

[1] It is possible that family members of the employee may have a cause of action for negligence against the company/employer including claims like wrongful death, loss of consortium, etc.